Private FDRs Advice

If you are involved in court proceedings about a financial settlement on divorce or civil partnership dissolution, a private financial dispute resolution (FDR) - sometimes known as an early neutral evaluation (ENE) - could be an appropriate choice depending on the stage your court proceedings have reached. Alternatively, you can have a private FDR or ENE before proceedings have even begun. JMW can provide the expert advice you need to ensure you make the right decisions.

To find out more about private FDRs, ENEs or other forms of non-court dispute resolution, call on 0345 872 6666 or complete our online enquiry form and a member of our team will give you a call back.

Private FDRs or ENEs Explained

A private FDR is a different option for parties to a family dispute to resolve matters outside of the formal court process. In a nutshell, a senior family lawyer - often a barrister - or a former judge, is hired by the parties, usually for a whole day, to consider the evidence available in their case so far, listen to their lawyers' reasoning for any settlement offers already made and then to give guidance as to what might be an appropriate outcome in the case.

Most court proceedings relating to financial settlements on divorce or civil partnership dissolution follow a standard procedure. As part of this, the court will make directions so that it will have all the information and evidence it needs to decide the case properly. Once the primary information-gathering stage and any necessary follow-up has been completed, the court will usually arrange a hearing known as a financial dispute resolution appointment or FDR.

On this occasion, the judge will have access to all the information disclosed to date, copies of any settlement offers made by either side and will have an opportunity to listen to each party or their lawyer's arguments about why they think their settlement offer is appropriate. The parties will have time during the course of the day to negotiate either through lawyers or face to face. However, if a settlement is not reached via negotiation alone, the judge will give guidance or a broad indication on how the case might be decided if it proceeded to a fully contested hearing.

It is very important to understand that the judge cannot decide the case on this date; he or she can only say what a court would be likely to do when faced with a similar situation. That judge can take no further part in the proceedings if a settlement is not reached. In response to guidance of this type, the parties very often settle their case either at the FDR or very shortly afterwards.

A private FDR or early neutral evaluation follows a very similar procedure to this except that it takes place outside the court arena and the lawyer or former judge presiding over it is paid privately for their time by the parties.

Features of a private FDR or early neutral evaluation

FDRs conducted in court are a tried and tested method of settling cases and have a good success rate. However, they are only available to couples who are already engaged in contested financial proceedings as part of the court process. An early neutral evaluation/private FDR can take place at any stage provided both parties agree to it. This has the potential to bring the parties and their lawyers together at an early stage, sometimes before court proceedings have even begun, to get a clear 'steer' from a highly experienced, neutral practitioner, which can increase the likelihood of a settlement being reached there and then or shortly afterwards.

As with court-run FDRs, a person presiding over a private FDR or ENE cannot decide the case; they can only guide the parties as to what might be an appropriate outcome and give an opinion as to which of the parties' legal arguments are likely to succeed and which are not.

If court proceedings are already underway, parties can sometimes experience significant delays in waiting for an FDR date from the court due to the heavy workload of the family court, especially in complex cases. This delay can substantially increase costs. With a private FDR, the parties are effectively 'skipping' a stage of the official court process and undertaking it themselves, which can speed things up.

In addition, a private FDR can happen at any time and in any place that can be agreed by the parties and their lawyers, unlike a court hearing. The parties can select a specific person to preside over the private FDR whereas it is not possible to 'handpick' a judge within the court system. Those involved in the meeting are also free to design the process themselves provided everyone is in agreement and can streamline the information gathering requirements of the standard court-run FDR if appropriate.

A major difference between a private FDR/ENE and a hearing conducted within the court system is that the person presiding over the meeting will need to be paid by the parties. The private FDR is therefore not a cheap option as such, but it can prove a more cost effective route by avoiding delays in the court system and facilitating early settlement.

Private FDRs/ENEs are not right for every case but in some situations they can be a powerful tool in breaking the deadlock that can sometimes arise in negotiations. They also have the potential to cut some delay out of the standard court process, even if the case does end up with a fully contested final hearing.

Why Choose JMW?

JMW has represented clients - including those with very substantial and complex income and assets - at private FDRs. We are well-equipped to provide a sensible assessment of whether a private FDR or ENE is likely to prove worthwhile in your specific case and, if so, help select the most appropriate person to preside over the meeting. We also understand what is required to give you the best possible chance of a successful outcome.